People v. Soltis

• Decision Date: 28 January 1981
• Docket Number: Docket No. 48866
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard SOLTIS, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 811

304 N.W.2d 811

104 Mich.App. 53

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bernard SOLTIS, Jr., Defendant-Appellant.

Docket No. 48866.

Court of Appeals of Michigan.

Jan. 28, 1981.

Released for Publication April 30, 1981.

Thomas P. Rabette, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Philip J. Crowley, Pros. Atty., Mary C. Smith, Pros. Attys. Appellate Service, for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and SULLIVAN, ^* JJ.

PER CURIAM.

On September 2, 1978, the defendant, Bernard Soltis, Jr., and William E. Wilson, were charged with possession with intent to deliver phencyclidine in violation of M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). Codefendant Wilson entered a plea. Defendant Soltis went to trial in Kalkaska County Circuit Court and was convicted of the crime charged on October 12, 1979. On December 10, 1979, defendant was sentenced to a term of from three to seven years in prison and appeals of right.

Defendant contends in his first two specifications of error that the trial court erred in finding that he did not have standing to raise the defense of entrapment and in its concluding that, alternatively, even if defendant did have standing he was not in fact entrapped. We find that the trial court did not err in finding that the informant's activities were directed only to the codefendant and that they were not within the knowledge of defendant Soltis whose furnishing for sale the controlled substance in this matter appears to have been solely the conducting of an illegal enterprise for profit.

We find that the trial court committed no error in imposing defendant's sentence which was within the proper minimum and maximum limits for the crime charged.

The defendant next argues that an adequate foundation for the reliability of the spectrophotometer test results was not established. In applying the rules announced in People v. Krulikowski, 60 Mich.App. 28, 230 N.W.2d 290 (1975), we conclude that the trial court did not abuse its discretion in finding that the machine's reliability had been adequately established.

Finally, defendant claims that the trial court erred by denying his motion for a Walker ¹ hearing. Although a Walker hearing contemplates a pretrial motion, under proper circumstances the trial court should exercise its discretion to entertain a motion to suppress at trial. People v. Mitchell, 44 Mich.App. 679, 683, 205 N.W.2d 876 (1973), rev'd on other grounds, 402 Mich. 506, 265 N.W.2d 163 (1978). There it was said:

"Whether a trial judge abuses his discretion by not turning aside from a criminal case to conduct a separate hearing upon the admissibility of evidence may be tested by the existence of 'special circumstances' ² justifying the delay. Although this concept has not been fully defined, the primary example is offered in People v. Ferguson, supra, a case where the factual circumstances constituting the illegality are not known prior to trial."

The transcript reveals that the matter was first discussed in chambers where legal precedents were examined. Defense counsel stated as follows:

"Mr. Rabette : We have discussed the matter

"Court : Sure.

"Mr. Rabette : in Chambers on several occasions since I first raised the issue. I can only add to that that the cases that I've brought to the Court's attention indicate to me that there should be some notice given to the Defense of the Prosecutor's intention to use a purported confession at trial.

"Court : There's a case that indicates that notice should be given by the Prosecutor?

"Mr. Rabette : Your Honor, I ca I can't say that there' (sic ) a clear directive that it it must be given

"Court : Or, even should?

"Mr. Rabette : The rationale underlying two cases People v. Shipp and People v. Caravel placed substantial reliance in both those cases on such notice of intention to use a confession at trial. I believe it was the Caravel case where the Defendant sought to raise the issue for the first time on appeal had not objected prior to trial or at trial and, in addition even given that, they never raised the objection. The Court, in its analysis, looked at the further factor that a a notice of intent had been provided and they said where in addition it had not been provided. I realize the difficult position that the Court is in hearing this matter raised for the first time on the it was raised for the first time right on the eve of trial, I believe just before we began selecting a jury if I re if my recollection is correct.

"Court : I had understood that we had selected the jury and and, if I'm wrong

"Mr. Rabette : Yeah.

"Court : tell me that we had selected a jury and before opening statement, then the Prosecutor

"Mr. Rabette : Your your Honor's correct your Honor's correct right we had already selected a jury and it was formed. I, personally, had no knowledge that the Prosecutor was in possession of a purported confession.

"Court : My the next obvious question is, did you ever ask your client if he made a statement?

"Mr. Rabette : I don't recall asking him that specific question no.

"Court : Well, did he ever communicate tell you that he had?

"Mr. Rabette : No, he without going into too much detail, your Honor

"Court : Excuse me I didn't

"Mr. Rabette : Yeah.

"Court :...